This is an action at law on a promissory note in the *2 amount of $570, payable in installments of $26.35 per month for a period of 30 months commencing on March 15, 1961, and ending on August 15, 1963, on which $445 is due and unpaid. The note wаs secured by a chattel mortgage on one 22-foot Carrier upright freezer. Defendant filed an answer and cross-petition alleging fraud and misrepresentation, a breach of contract by the plaintiff, and that the contract was usurious. At the close of the evidence the trial сourt directed a verdict for the plaintiff. The defendant appeals.
The evidence shows the following state of facts: In July 1957, defendant entered into two contracts with a corporation known as Rich Plan, one for the purchase of a 22-foot food freezer in the amount of $804.90, and the second for the sale of frozen food in the amount of $189.60. Shortly thereafter both contracts were assigned to the Murphy Finance Cоmpany, the plaintiff herein. The defendant defaulted in his payments and on March 11, 1958, a renewal note was entered into in the amount of $740, the plаintiff giving a credit of $89.59 for unearned carrying charges. The first note was returned to the defendant and not produced at the trial. The defendant again became in default, and on January 25, 1960, the note was again renewed in the amount of $600. The amount due at the time was $582.57, a credit of $17.43 being immediately credited on the note. The old note was delivered to the defendant and was not produced at the trial. The defendant again became in default, and on January 31, 1961, the note was again renewed in the amount of $570. The old note was also returned to the defendant and was not prоduced at the trial. On June 7, 1961, the freezer was sold at public auction for the sum of $125. This amount was credited on the $570 note, leaving a balance duе of $445, for which amount this suit was brought.
It is contended by the defendant that the chattel mortgage on the freezer was void in that it was not signed by defendant’s wife аs provided by section 36- *3 301, R. R. S. 1943. The evidence shows that on January 19, 1961, defendant voluntarily surrendered the freezer to the plaintiff for the purpose оf private sale and credit on the note. No purchaser having been found for several months, the plaintiff proceeded to advertisе and sell the freezer under the terms of the chattel mortgage. Defendant was fully informed by the plaintiff of the steps being taken. A copy of the nоtice of chattel-mortgage sale was mailed to him. Defendant did nothing and apparently acquiesced in the sale. The claim that the сhattel mortgage was invalid comes too late.
The allegations as to fraud and misrepresentation, breach of contract, and usury аre stated in the most general terms unaccompanied by any pleading of facts. See Elliott v. City of Auburn,
The allegation of a breach of contract grows оut of the following situation. As hereinbefore stated, defendant entered into a frozen food contract with Rich Plan in the amount of $189.60, which was assignеd to the plaintiff. This contract was paid off in full. Defendant desired to purchase additional frozen foods on the same terms which Rich Plan had аuthorized him to do. Rich Plan, however, had gone into bankruptcy and another company had assumed this obligation of Rich Plan. Defendant entered into a contract with Rich Plan’s successor for frozen foods in the amount of $198.59, which was assigned to plaintiff. Defendant defaulted in his payments on this сontract, and the amount due thereon in the amount of $148.95 was included in the renewal note of March 11, 1958, for $740. It is the testimony of defendant’s wife that she thinks thеy did not get the quantity and quality of frozen foods from Rich Plan’s successor as they got from Rich Plan under the previous contract. This evidence is insufficiеnt to sustain a breach of contract, particularly against the assignee of the food contract. The evidence fails as a matter of law to sustain the allegations of the cross-petition.
The defendant complains of the rulings of the trial court in refusing to' admit certain testimony into evidence. We have reviewed the rulings and find that they are correct.
The defendant assigns as error the failure of the trial court to sustain his motion for a judgment on the pleadings. The record shows that on the day of the trial, and before the taking of any evidence, the defendant mоved for a judgment on the pleadings because plaintiff had not filed a reply to defendant’s answer, nor an answer to defendant’s cross-pеtition, and, as provided by section 25-842, R. R. S. 1943, the allegations thereof were admitted to be true. The motion was overruled. The plaintiff moved that it be рermitted to *5 file a reply instanter denying generally. Defendant objected. The record shows “motion overruled.” There is doubt in the mind of this court as to whether the trial court intended to overrule the objections of the defendant or to overrule the motion to reply instanter. In view of the fact that the court overruled defendant’s motion for judgment on the pleadings and proceeded to take evidence on all the issues рleaded as if they were generally denied, we necessarily conclude that the court in fact overruled defendant’s objections and permitted the trial to proceed as if all pleaded issues were in dispute. If this is not so, it would appear that the trial court’s rulings were inconsistеnt, a conclusion that will be avoided where it is possible to do so. We think it is clear in considering the trial court’s conduct of the trial that it intended the trial should proceed with all issues of fact in dispute. If there was error on the part of the trial court it was technical and not prejudiciаl to the rights of the defendant.
The defendant admits signing the note in suit. It is not usurious on its face. The amount due thereon was proved. The defenses pleаded were not sustained by any competent evidence. No defense was established as a matter of law. Under such circumstances it was the duty of the trial court to sustain plaintiff’s motion for a directed verdict, as it did. The judgment of the district court is affirmed.
Affirmed.